Case 4 - A last-instance court, a late EU plea and a refusal to refer
A telecoms operator, TelX, is fined EUR 2 million by the national regulator for breaching a national rule on number portability. The rule was adopted to implement Directive (EU) 2018/1972. TelX argues that the national rule adds a condition not found in the Directive and that the Directive, read with Article 11 of the Charter, precludes the fine. TelX appeals to the Supreme Administrative Court, a court of last instance. Two lower courts have reached opposite conclusions on the same point, and the Constitutional Court has upheld the national rule as compatible with the Constitution. At the hearing, TelX raises the EU plea for the first time, although national procedural law requires pleas to be lodged within 30 days of the contested decision and TelX raised none. The Supreme Court is inclined to dismiss the appeal without a reference, on the ground that the point is acte clair. TelX argues that any refusal would breach Article 47 of the Charter and its right to an effective remedy. The hearing is in three weeks.
1. Is the Supreme Court obliged to make a preliminary reference under Article 267(3) TFEU? Assess the acte clair argument and the significance of the divergent lower court rulings and the Constitutional Court judgment.
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1. The starting point. A court against whose decisions there is no judicial remedy under national law must refer unless one of the CILFIT exceptions applies. Those exceptions, restated in Consorzio Italian Management (C-561/19), are: the question is irrelevant; the provision has already been interpreted by the Court (acte éclairé); or the correct application of Union law is so obvious as to leave no scope for any reasonable doubt.
2. The acte clair exception is narrow. Obviousness is not the subjective confidence of the individual judge. The national court must be convinced that the same obviousness would be apparent to other national courts and to the parties, and it must give reasons for its refusal to refer. A court cannot simply assert that the point is clear; the reasoning must show why the answer admits of no reasonable doubt.
3. Application to the facts. Two lower courts have reached opposite conclusions on the very point, which is powerful evidence that the interpretation is not obvious. The national rule arguably adds a condition not present in Directive 2018/1972, which is precisely the type of interpretive question - conformity of national implementing measures, read with the Charter - on which the Court's guidance is normally needed. The Constitutional Court's judgment is irrelevant to the acte clair analysis: it settles compatibility with the Constitution, not the interpretation of the Directive, and a constitutional court ruling is not an acte éclairé on Union law.
4. Consequences of refusal. A manifest refusal to refer by a last-instance court can be pursued by infringement proceedings (Commission v France, C-416/17) and, in exceptional cases, may engage State liability for judicial decisions (Köbler, C-224/01), which requires a manifest infringement of the applicable law.
Conclusion: on these facts the acte clair exception is not available; the Supreme Court must refer unless it can give a reasoned demonstration of obviousness that meets the C-561/19 standard - which is unlikely here.
2. How should the Supreme Court deal with the late EU plea? Does Article 47 of the Charter give TelX a right to have a reference made?
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1. Procedural autonomy and its limits. In the absence of Union rules, national procedural law governs, subject to equivalence and effectiveness (Rewe, 33/76; Comet, 45/76). A 30-day time limit for raising pleas is, in principle, compatible with Union law: it is a reasonable limitation period that provides legal certainty and applies equally to domestic and Union-law pleas, so equivalence is respected.
2. Effectiveness. A time limit becomes unlawful only if it makes the exercise of Union rights practically impossible or excessively difficult. The Court has accepted that a national court need not raise a Union-law plea of its own motion if domestic law does not require it to do so (Van Schijndel, C-430/93; Peterbroeck, C-312/95). But where the national court has the power to examine points of law of its own motion, or where the procedural rule prevents a party from effectively relying on Union law, the national court must disapply that rule. The Supreme Court should therefore examine whether the plea could not reasonably have been raised earlier, and whether the interests of justice and the effectiveness of the Directive require it to be considered.
3. Article 47 and the alleged right to a reference. Article 47 guarantees access to a court and an effective remedy, but it does not confer a right to have a question referred: the preliminary reference procedure is a form of judicial cooperation, not a remedy for the parties (Cartesio, C-210/06). A refusal to refer does not, as such, infringe Article 47, provided the party has been heard and the court has given a reasoned decision. The Charter cannot be used to circumvent the CILFIT criteria; its role is to ensure that the national proceedings remain fair and effective.
4. Practical outcome. The Supreme Court should give a reasoned ruling on the EU plea, state expressly why it does or does not refer, and, if it refuses, explain its assessment of obviousness in the light of the conflicting decisions. TelX's remedy for any breach lies in the infringement action and, ultimately, in State liability, not in an appeal to the Court of Justice.